Mary A. Bryan, Individually and as Next Friend of Stacey Arlene Bryan and Jay Russell Bryan v. Zenith Insurance Company

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00048-CV

Mary A. Bryan, Individually and as Next Friend of Stacey Arlene Bryan

and Jay Russell Bryan, Minors, Appellant

v.

Zenith Insurance Company, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 99-02417-A, HONORABLE ERNEST C. GARCIA, JUDGE PRESIDING

Appellant Mary A. Bryan, individually and representing her children, Stacey Arlene

Bryan and Jay Russell Bryan, applied for survivor's benefits under the Texas Workers'

Compensation Act after James R. Bryan suffered a fatal heart attack on the job. The appellee, Zenith

Insurance Company, denied the claim. Mary Bryan filed suit alleging that Zenith violated the duty

of good faith and fair dealing in failing to settle her claim under common law and article 21.21 of

the Texas Insurance Code. See Tex. Rev. Civ. Stat. Ann. art. 21.21, § 4(10)(a) (West Supp. 2001).

The district court rendered summary judgment in favor of Zenith. Mary Bryan appeals. We will

affirm the district court's judgment.

BACKGROUND

James Bryan worked for Colcom, Inc. Although he had previously worked in a

sedentary position as a supervisor, his job duties recently changed, and at the time of his death he

was a cable line locator. The job required him to walk through construction sites locating cable lines

that were in danger of being cut during construction. He used electrical sensing equipment to

determine where the lines were buried and marked the route of the cable with spray paint. He then

recorded his markings on videotape.

On December 5, 1996, James Bryan went to locate cables at a site on Ritchie Street

in Austin, Texas. The site ran along the side of a ridge, the length of a residential project. The cable

lines that were in danger of being cut by construction traveled up and down the side of the ridge.

Testimony indicated that the terrain would be quite physically demanding for a locator. After

completing his inspection, James Bryan left the site in a company truck. Before reaching the next

site, he suffered a fatal heart attack and was pronounced dead at the scene.

Dr. Robert J. Bayardo, M.D., the Chief Medical Examiner for Travis County,

conducted an autopsy. Dr. Bayardo found that long-term heart disease caused the attack. James

Bryan had an enlarged heart and severe blockage of the arteries, one of which was ninety percent

blocked. Dr. Bayardo concluded the heart attack was caused by a cardiac arrhythmia (an irregular

heartbeat), which was the result of severe, pre-existing coronary atherosclerosis.

Zenith had issued a workers' compensation insurance policy to Colcom, James

Bryan's employer. The day after James Bryan's death, Zenith received the Employer's First Report

of Injury or Illness as notice of the death. Three days later, Zenith received the autopsy report. On

December 18, 1996, Zenith decided to deny coverage of any claim for workers' compensation

benefits, relying on the Chief Medical Examiner's conclusion that pre-existing heart disease caused

the death. Zenith sent Mary Bryan a Notice of Refused or Disputed Claim, which denied

compensability for the heart attack.

Months later, Mary Bryan received information that Colcom allegedly possessed a

videotape that James Bryan made as he performed his duties on the day of his death. On December

3, 1997, Mary Bryan wrote Zenith to notify it of this information. Zenith attempted to obtain the

alleged tape but was told by Colcom that no such tape existed. Zenith then sought second and third

medical opinions from Dr. Brian C. Buck and Dr. Russell Austin Encke. Based on the autopsy

report, each doctor confirmed that the evidence established that heart disease caused the heart attack,

not exertion.

Mary Bryan sought review of the denial of her workers' compensation claim through

the administrative process with the Texas Workers' Compensation Commission. The death was held

to be not compensable following a Benefit Review Conference, a Benefit Contested Case Hearing,

and an appeal to the Appeals Panel. Texas Workers' Compensation Comm'n, Bryan v. Zenith Ins.

Co. , Docket No. AU-97-098472-02-CC-SA42 (Jan. 22, 1999). Mary Bryan then filed suit in district

court seeking judicial review of the final administrative decision on the workers' compensation

claim. In district court, Mary Bryan added a claim of bad faith directed against Zenith regarding its

claims-handling procedure. The bad faith claim was severed. A trial on the merits of the workers'

compensation claim was conducted. The trial court rendered judgment in favor of Zenith, and this

Court affirmed. Bryan v. Zenith Ins. Co. , No. 03-00-00573-CV, 2001 Tex. App. LEXIS 3726 , at *1

(Tex. App.--Austin June 7, 2001) (not designated for publication).

In the meantime, Mary Bryan proceeded with her claims of common-law bad faith

and statutory bad faith based on article 21.21 of the Texas Insurance Code. See Tex. Rev. Civ. Stat.

Ann. art. 21.21, § 4(10)(a). On October 6, 2000, the trial court rendered summary judgment in favor

of Zenith. The trial court did not specify its grounds. On appeal, Mary Bryan alleges that granting

summary judgment was error whether the court relied on limitations or non-limitations grounds. She

argues that the judgment in the underlying case, holding that the workers' compensation claim was

not covered by the policy, does not bar her claim that Zenith acted in bad faith in its claims-handling

practices.

DISCUSSION The standards for reviewing a motion for summary judgment are well established:

(1) the movant for summary judgment has the burden of showing that no genuine issue of material

fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a

disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will

be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and

any doubts resolved in its favor. See Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548-49 (Tex.

1985). The function of summary judgment is not to deprive litigants of the right to trial by jury, but

to eliminate "patently unmeritorious claims or untenable defenses." Swilley v. Hughes , 488 S.W.2d

64, 68 (Tex. 1972) (citation omitted). The propriety of summary judgment is a question of law;

therefore, we review the trial court's decision de novo . See Texas Dep't of Ins. v. American Home

Assurance Co. , 998 S.W.2d 344, 347 (Tex. App.--Austin 1999, no pet.).

Workers' compensation carriers have a duty of good faith and fair dealing in the

processing of compensation claims. Aranda v. Insurance Co. of N. Am. , 748 S.W.2d 210, 215 (Tex.

1988); Arnold v. National County Mut. Fire Ins. Co. , 725 S.W.2d 165, 167 (Tex. 1987). The

common-law duty arises as a result of the special relationship between the insurer and the insured.

Arnold , 725 S.W.2d at 167 . The insurer's statutory duty is mandated and defined in article 21.21,

section 4 of the Texas Insurance Code, which provides:

Sec. 4. The following are hereby defined as unfair methods of competition and

unfair and deceptive acts or practices in the business of insurance:

. . . .

(10) Unfair Settlement Practices. (a) Engaging in any of the following unfair

settlement practices with respect to a claim by an insured or beneficiary:

. . . .

(ii) failing to attempt in good faith to effectuate a prompt, fair, and

equitable settlement of a claim with respect to which the insurer's

liability has become reasonably clear;

. . . .

(viii) refusing to pay a claim without conducting a reasonable investigation

with respect to the claim; . . . .

Tex. Rev. Civ. Stat. Ann. art. 21.21, § 4(10)(a). Section 16 of article 21.21 creates a private right

of action for violations of section 4(10)(a)(ii). See Tex. Rev. Civ. Stat. Ann. art. 21.21, § 16 (West

Supp. 2001); Universe Life Ins. Co. v. Giles , 950 S.W.2d 48, 55 (Tex. 1997).

The Texas Supreme Court adopted the "reasonably clear" standard found in article

21.21 as the standard for common-law bad faith in Giles . See Tex. Rev. Civ. Stat. Ann. art. 21.21,

§ 4(10)(a)(ii); Giles , 950 S.W.2d at 55-56 . Thus, under both statutory and common-law bad faith

inquiries, an insurance company is liable if it knew or should have known that it was reasonably

clear that the claim was covered. Giles , 950 S.W.2d at 56 ; s ee also Aranda , 748 S.W.2d at 213

(stating former "no reasonable basis" standard for common-law bad faith). The court unified the

standards for manageability and clarity. Giles , 950 S.W.2d at 55-56 .

Mary Bryan alleges that Zenith violated this duty of good faith and fair dealing, both

under statute and common law. However, applying the standard announced in Giles , the record does

not indicate that workers' compensation coverage for James Bryan's death was reasonably clear

when Zenith denied the claim. See id. Zenith based its original denial on the autopsy report from

the Chief Medical Examiner, which cited heart disease as the cause of death. Zenith sought a second

medical opinion from Dr. Buck. He reviewed the autopsy report and concluded in his report, issued

on April 22, 1998, that the cause of death was severe and long-standing coronary atherosclerosis.

Dr. Buck concluded that James Bryan's heart attack was caused by "the progression of the

atherosclerosis and not exertion." Zenith sought a third medical opinion from a board certified

internist and cardiologist, Dr. Encke. He reviewed the medical reports and agreed that the evidence

established that the heart attack resulted from the natural progression of a pre-existing heart

condition. These medical opinions provided a reasonable basis for Zenith's conclusion that James

Bryan's heart attack was the result of the natural progression of his disease instead of any work-related event. Thus, there can be no claim that liability was reasonably clear, as required for a

holding of bad faith.

Mary Bryan argues, however, that evidence of heart disease alone does not prove that

the denial was reasonable and not in bad faith. Section 408.008(2) of the Texas Labor Code provides

for compensability of a heart attack if "the preponderance of the medical evidence regarding the

attack indicates that the employee's work rather than natural progression of a pre-existing heart

condition or disease was a substantial contributing factor of the attack." Tex. Lab. Code Ann.

§ 408.008 (2) (West 1996); accord Mueller v. Charter Oak Fire Ins. Co. , 533 S.W.2d 123, 125 (Tex.

Civ. App.--Tyler 1976, writ ref'd n.r.e.) (holding pre-existing heart condition will not preclude

compensation). Mary Bryan alleges that, in light of the physical exertion James Bryan suffered on

the day of his death, coverage under the policy was reasonably clear, or would have been upon

investigation of the issue, and therefore the denial was in bad faith.

Viewing the Giles bad-faith standard and the Texas Labor Code's heart attack

standard together, a claim of bad faith must allege that it was reasonably clear that a preponderance

of the medical evidence indicated that work caused the heart attack. See Tex. Lab. Code Ann.

§ 408.008 (2); Giles, 950 S.W.2d at 56 . In the instant case, all of the medical evidence obtained by

Zenith, consisting of an autopsy report and the reports of the two doctors, indicated that the heart

attack resulted from a natural progression of heart disease. We conclude Mary Bryan has not raised

a genuine issue of material fact as to whether a "preponderance of the medical evidence" pointed to

the employee's work as the substantial factor causing James Bryan's heart attack.

Although liability must be reasonably clear before an insurer's denial is deemed in

bad faith, Mary Bryan correctly adds that insurers have a duty to properly investigate claims. See

Giles , 950 S.W.2d at 56 . Insurers may not neglect investigation so as to prevent liability from ever

becoming reasonably clear. See id. An insurance company breaches its duty of good faith and fair

dealing by failing to reasonably investigate the claim. Id. ; s ee also Arnold , 725 S.W.2d at 167 .

Article 21.21 includes the following as an unfair settlement practice in section 4(10)(a)(viii):

"refusing to pay a claim without conducting a reasonable investigation with respect to the claim."

Tex. Rev. Civ. Stat. Ann. art. 21.21, § 4(10)(a)(viii).

Mary Bryan argues that Zenith failed to satisfy this duty to properly investigate.

Specifically, Mary Bryan argues that Zenith failed to investigate the issue of James Bryan's physical

exertion on the day of his death by not obtaining the alleged videotape from Colcom or other related

evidence. She believes this information was both crucial and neglected.

Zenith, however, contends in its brief that it requested the tape from Colcom but was

never furnished it. In fact, Colcom has steadfastly denied that the videotape existed. We examined

this issue in some detail in our prior opinion in the workers' compensation case. Bryan , 2001 Tex.

App. LEXIS 3726 , at *8. This Court concluded that "no person testified to the existence of a

December 5, 1996 tape." Id. In fact, we noted that a Colcom employee testified that she matched

James Bryan's work records with the videotape from his camera and determined that any relevant

recordings were from days prior to the day of James Bryan's death. Id. Thus, the trial court correctly

concluded as a matter of law that Zenith could not have acted in bad faith by failing to procure a

videotape that was never shown to exist.

CONCLUSION

The supreme court expressed in Giles the appropriate reluctance courts should have

in dispensing with bad faith claims on summary judgment. See Giles , 950 S.W.2d at 56 . However,

here appellant presents no genuine issue of material fact. See id. The medical documentation of

James Bryan's heart disease is undisputed. Mary Bryan offers no evidence suggesting that Zenith's

liability was reasonably clear nor evidence suggesting that Zenith failed in its duty to investigate.

Accordingly, we hold that Zenith disproved it acted in bad faith under common law or article 21.21.

We affirm the district court's summary judgment in Zenith's favor. (1)

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: July 26, 2001

Do Not Publish

1. Because we affirm the summary judgment on other grounds, we need not address the statute

of limitations as raised by Zenith in relation to Mary Bryan's claims. See Tex. R. App. P. 47.1.

ned by

Zenith, consisting of an autopsy report and the reports of the two doctors, indicated that the heart

attack resulted from a natural progression of heart disease. We conclude Mary Bryan has not raised

a genuine issue of material fact as to whether a "preponderance of the medical evidence" pointed to

the employee's work as the substantial factor causing James Bryan's heart attack.

Although liability must be reasonably clear before an insurer's denial is deemed in

bad faith, Mary Bryan correctly adds that insurers have a duty to properly investigate claims. See

Giles , 950 S.W.2d at 56 . Insurers may not neglect investigation so as to prevent liability from ever

becoming reasonably clear. See id. An insurance company breaches its duty of good faith and fair

dealing by failing to reasonably investigate the claim. Id. ; s ee also Arnold , 725 S.W.2d at 167 .

Article 21.21 includes the following as an unfair settlement practice in section 4(10)(a)(viii):

"refusing to pay a claim without conducting a reasonable investigation with respect to the claim."

Tex. Rev. Civ. Stat. Ann. art. 21.21, § 4(10)(a)(viii).

Mary Bryan argues that Zenith failed to satisfy this duty to properly investigate.

Specifically, Mary Bryan argues that Zenith failed to investigate the issue of James Bryan's physical

exertion on the day of his death by not obtaining the alleged videotape from Colcom or other related

evidence. She believes this information was both crucial and neglected.

Zenith, however, contends in its brief that it requested the tape from Colcom but was

never furnished it. In fact, Colcom has steadfastly denied that the videotape existed. We examined

this issue in some detail in our prior opinion in the workers' compensation case. Bryan , 2001 Tex.

App. LEXIS 3726 , at *8. This Court concluded that "no person testified to the existence of a

December 5, 1996 tape." Id. In fact, we noted that a Colcom employee testified that she matched

James Bryan's work records with the videotape from his camera and determined that any relevant

recordings were from days prior to the day of James Bryan's death. Id. Thus, the trial court correctly

concluded as a matter of law that Zenith could not have acted in bad faith by failing to procure a

videotape that was never shown to exist.

CONCLUSION

The supreme court expressed in Giles the appropriate reluctance courts should have

in dispensing with bad faith claims on summary judgment. See Giles , 950 S.W.2d at 56 . However,

here appellant presents no genuine issue of material fact. See id. The medical documentation of

James Bryan's heart disease is undisputed. Mary Bryan offers no evidence suggesting that Zenith's

liability was reasonably clear nor evidence suggesting that Zenith failed in its duty to investigate.

Accordingly, we hold that Zenith disproved it acted in bad faith under common law or article 21.21.

We affirm the district court's summary judgment in Zenith's favor. (1)